Judge: Michael P. Linfield, Case: 22STCV26662, Date: 2023-07-24 Tentative Ruling
Case Number: 22STCV26662 Hearing Date: January 10, 2024 Dept: 34
SUBJECT: Motion to
Compel Adam Levin, Esq. to Comply with the Deposition Subpoena by Defendants
Moving Party: Defendants
James Walters and Walters and Sklyar, LLP
Resp. Party: Third Party Adam Levin
The Motion to Compel Deposition is GRANTED. Third Party Adam Levin
shall make himself available for deposition within sixty (60) days of the
issuance of this Order.
BACKGROUND:
On August 17,
2022, Plaintiff Kirk Rudell filed his Complaint against Defendants Walters
& Sklyar, LLP and James Walters on a cause of action of accountancy
malpractice.
On October
17, 2022, Defendants filed their Answer to the Complaint.
On December
6, 2023, Defendants filed their Motion to Compel Adam Levin, Esq. to Comply with
the Deposition Subpoena by Defendants (“Motion to Compel Deposition”). In
support of their Motion to Compel Deposition, Defendants concurrently filed
Declaration of Hershini Gopal.
On December
15, 2023, Third Party Adam Levin filed his Opposition to the Motion to Compel
Deposition. In support of his Opposition, Third Party concurrently filed
Declarations of Adam Levin and Richard B. Sheldon.
On January 2,
2024, Defendants filed their Reply regarding Motion to Compel Deposition.
ANALYSIS:
I.
Legal
Standard
“Any of the following
methods may be used to obtain discovery within the state from a person who is
not a party to the action in which the discovery is sought:
“(1) An oral deposition under Chapter 9
(commencing with Section 2025.010).
“(2) A written deposition under Chapter 11
(commencing with Section 2028.010).
“(3) A deposition for production of business
records and things under Article 4 (commencing with Section 2020.410) or
Article 5 (commencing with Section 2020.510).”
(Code Civ. Proc., §
2020.010, subd. (a).)
“Except as provided
in subdivision (a) of Section 2025.280, the process by which a nonparty is
required to provide discovery is a deposition subpoena.” (Code Civ. Proc., §
2020.010, subd. (b).)
“A deposition subpoena may command
any of the following:
“(a) Only
the attendance and the testimony of the deponent, under Article 3 (commencing
with Section 2020.310).
“(b) Only
the production of business records for copying, under Article 4 (commencing
with Section 2020.410).
“(c) The
attendance and the testimony of the deponent, as well as the production of
business records, other documents, electronically stored information, and
tangible things, under Article 5 (commencing with Section 2020.510).”
(Code Civ. Proc., § 2020.020.)
“Subject to subdivision
(c) of Section 2020.410, service of a deposition subpoena shall be effected a
sufficient time in advance of the deposition to provide the deponent a
reasonable opportunity to locate and produce any designated business records,
documents, electronically stored information, and tangible things, as described
in Article 4 (commencing with Section 2020.410), and, where personal attendance
is commanded, a reasonable time to travel to the place of deposition.” (Code
Civ. Proc., § 2020.220, subd. (a).)
“Personal service of
any deposition subpoena is effective to require all of the following of any
deponent who is a resident of California at the time of service:
“(1) Personal attendance and testimony, if
the subpoena so specifies.
“(2) Any specified production, inspection,
testing, and sampling.
“(3) The deponent’s attendance at a court
session to consider any issue arising out of the deponent’s refusal to be
sworn, or to answer any question, or to produce specified items, or to permit
inspection or photocopying, if the subpoena so specifies, or specified testing
and sampling of the items produced.”
(Code Civ. Proc., § 2020.220, subd. (c).)
“A deposition
subpoena that commands the attendance and the testimony of the deponent, as
well as the production of business records, documents, electronically stored
information, and tangible things, shall:
“(1) Comply with the requirements of Section
2020.310.
“(2) Designate the business records,
documents, electronically stored information, and tangible things to be
produced either by specifically describing each individual item or by
reasonably particularizing each category of item.
“(3) Specify any testing or sampling that is
being sought.
“(4) Specify the form in which any
electronically stored information is to be produced, if a particular form is
desired.”
(Code Civ. Proc., § 2020.510, subd. (a).)
II. Discussion
Defendants move the Court to compel Third Party Adam Levin (“Third
Party”) to appear for a deposition. (Motion to Compel Deposition, p. 7:2–4.)
Defendants argue that the deposition subpoena served upon Third Party is
compliant with California Code and that the Court should compel him to appear.
Third Party opposes the Motion to Compel Deposition, arguing: (1) that
the motion is defective, lacks merit, and should be denied; (2) that Defendants
did not cite the statutory authority purportedly supporting their motion; (3)
that Defendants were required to meet and confer prior to filing the motion;
(4) that Third Party’s objections to the subpoena should be sustained; and (5)
that Defendants failed to establish good cause for the requested documents.
(Opposition, pp. 7:14–16, 8:17, 10:1, 13:6.)
In their Reply, Defendants argue: (1) that Defendants are entitled to
obtain Third Party’s oral deposition; and (2) that the deposition of Third
Party is necessary for Defendants to ensure they have made all efforts to acquire
all relevant information. (Reply, pp. 2:6, 3:20–21.)
Defendants have the better argument
here.
Procedurally, the Motion to Compel Deposition is not defective simply
because Defendants might not have cited the correct sections of the Code of Civil
Procedure. (Civ. Code, § 3528 [“The law respects form less than substance.”].)
Defendants are allowed to serve third parties — including Third Party Adam
Levin — with deposition subpoenas. (Code Civ. Proc., §§ 2020.010, et seq.)
Further, to the extent that a meet and confer declaration is necessary for this
motion, the Court determines that the Parties have sufficiently met and
conferred on this matter.
Substantively, Third Party’s argument is essentially that he should not
have to be deposed because “he has no connection to the issues in the
underlying lawsuit” and thus “compliance with the requests contained [in the
Subpoenas] and appearing for a deposition would be unduly burdensome and
oppressive.” (Opposition, pp. 10:8–12.) Although the allegations made my
Defendants indicate otherwise, it certainly is possible that Third Party does
not have a “connection to the issues in the underlying lawsuit.” If Third Party
has no relevant knowledge, his deposition will be quick. However, Defendants
have the right to discover information, and it appears that Defendants have
acted with good cause in issuing their deposition subpoena to Third Party.
III. Conclusion
The Motion to Compel Deposition is GRANTED. Third Party Adam Levin
shall make himself available for deposition within sixty (60) days of the
issuance of this Order.